United States v. Chapa-Gutierrez , 186 F. App'x 474 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 04-40587
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAS CHAPA-GUTIERREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-335-1
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Elias Chapa-Gutierrez (Chapa) appeals the 33-month sentence
imposed following his jury trial conviction for transporting
illegal aliens within the United States. Chapa argues that, in
light of United States v. Booker, 543 U.S. 220 (2005), his
sentence must be vacated because it was enhanced on the basis of
judicial factual findings. Specifically, he challenges the
increase in his base offense level pursuant to U.S.S.G.
§ 2L1.1(b)(5).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40587
-2-
Chapa concedes that he did not raise a constitutional
challenge to his sentence before the district court and that
review is for plain error. See United States v. Mares, 402 F.3d
511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). The
district court did commit Booker error because Chapa’s sentence
was enhanced based on facts not alleged in the indictment or
proved to a jury beyond a reasonable doubt. See Booker, 543 U.S.
at 244. However, Chapa fails to meet his burden of showing that
the error affected his substantial rights. See Mares, 402 F.3d
at 521. Chapa has not identified anything in the record
indicating that the district court would have imposed a lower
sentence under an advisory guidelines scheme. See id.AFFIRMED.